Sunday, 26 October 2008

He seemed to imply that Tun Salleh Abas ought to be treated differently, but what the current Council has demonstrated is that there should be equality before the law, and the earlier decision on Vohrah's application should now be best regarded as res judicata.

Be that as it may, perhaps blogger Rocky's Bru,being not legally trained, should be forgiven for his inability in appreciating LEGAL principles and the REAL issues involved.

- Stephen Chang Beng Cheng

Is Rocky's Bru barking up the wrong tree?

by

Stephen Tan Ban Cheng

Since Thursday (October 23) the day blogger Ahirudin Attan or better known as Rocky's Bru highlighted Tun Salleh Abas' application to be allowed to be called as a "consultant" in his article entitled Bar-red by Council's double standards, more than 150 comments were posted by the readers on his blog in the aforesaid article and two subsequent articles that followed.

Sadly, majority of these commenters (and writing anonymously)showed a deep ignorance of the real issue and went on a rampage, hurling abuses with RACISTS overtones at the Bar Council and its officers.

Even retired Court of Appeal judge, Datuk KC Vohrah was not spared.

This led to one reader writing,

"Rocky, I believe you are really barking on the wrong tree.

The perception you have moulded your readers to believe is that Tun Salleh has been deprived to practise meaning being deprived of earning a decent livelihood. This is definitely not the case.

.. Nobody is depriving Tun Salleh from practising and he does not need the blessing from the Attorney General nor the Bar Council to practise. That's a fact.

He is applying to have the title "consultant" which of course carries more status as not all members of the Bar can be a consultant as you would need to fulfil the relevant rule 60." (Edited]

Another anonymous commenter even alleged that:

"Talk had it that Tun Salleh has fallen out with them because the couple (Datuk Dr Yaacob Hussain Merican and Tunku Sofiah Jewa) - once great supporters and relatives of Tengku Razeleigh vowed never to talk to Tun Mahathir again are now close friends of Tun Mahathir. So Tun Salleh so pissed off because Tun Mahathir sacked Tun Salleh! In the Lingam inquiry, Tunku Sofiah even acted as counsel for Tun Mahathir!

... So you Rocky Bru and gang,if you bother to ask any senior lawyers, they will tell you in the 1988 judicial crisis, the Bar fought for judicial independence and not Tun Salleh. As a judge, Tun Salleh wasn't of good temperament and some lawyers even preferred to appear before the old Lord President Tun Hamid!

... Vohrah's application was approved years ago and not by the present Council who looked at principles and not personalities. If you had checked the legal directory on the Bar Council's website, KC Vohrah was called to the Bar on 19.12.1964.

This means Vohrah must have practised for sometime before he became a judge... Tun Salleh should learn to be grateful for what the Bar did for him!" [Edited]

Rocky's articles have also been reproduced on this website. Generally, members of the Bar were rather astonished by two remarks made by him in his first posting:

"Salleh Abas turns 80 next year. To say that he is disappointed with the Bar Council is an understatement. A close friend of the Tun told me that the former Lord President felt cheated, betrayed even.

The Bar had no qualms about using the Lord President's name and person to champion its cause, but was not willing to help him in a matter that it has discretion to.

"BRU notes: During the hours we spent interviewing him for his biography, the former Lord President made no mention of how the Bar Council had been treating him on this issue. If he had told us, we would have strongly advised him against attending the Bar Council's dinner, supposedly in his honour, in April."

The first remark drew a strong response from senior lawyer, Robert Lazar who wrote here:

"On a different note I was rather peeved to note the following comment in Rocky Bru's article. "A close friend of the Tun told me that the former Lord President felt cheated, betrayed even. The Bar had no qualms about using the Lord President's name and person to champion its cause, but was not willing to helphim in a matter that it has discretion to."

In the first place the "its cause" which must mean the pursuit of justice for all does not belong exclusively to the Bar.

Secondly it was not Tun Salleh's personality that drove the Bar in 1988.

If Rocky really wants to know, the Tun never really endeared himself as a friend of the Bar pre-1988 and neither did many of his actions and judgements. But it was the seat of justice and the institution that was attacked and it was that that the Bar rose to defend.

We recognise that Tun Salleh personally did suffer but to say that the Bar made use of him is a gross insult to the Bar and a gross distortion of history.

I am confident in saying that what motivates the Bar is the cause not the person."

To exemplify Robert's reference to "judgements", Tun Salleh Abas' decision in the famous case of Government of Malaysia v Lim Kit Siang in 1988 virtually dealt a death knell to public interest litigation in Malaysia.

Rocky's Bru's final shot was rather perplexing. He seemed to imply that Tun Salleh Abas ought to be treated differently, but what the current Council has demonstrated is that there should be equality before the law, and the earlier decision on Vohrah's application should now be best regarded as res judicata.

Be that as it may, perhaps blogger Rocky's Bru, being not legally trained, should be forgiven for his inability in appreciating legal principles and the real issues involved.

NOTE:

Rule 60.Use of "consultant" and "associate".

(1) An advocate and solicitor may have his name appear as "consultant" on the letterhead of a firm of advocates and solicitors if-

(a) he has a valid practising certificate issued under Part III of the Act;

(b) he has been-

(i) in active practice at the Malaysian Bar for a period of not less than 20 years; or

(ii) in active practice at the Malaysian Bar for a period of not less than 10 years and, in addition, has served as a Judge or a member of the Judicial and Legal Service for a period which, aggregated with the period of his active practice at the Malaysian Bar, total not less than 20 years; and

(c) he is not a partner or legal assistant in any other firm of advocates and solicitors or engaged in any other capacity in any such other firm in the States of Malaysia.

We refer to the Bar Council’s decision to reject the application of Tun Salleh Abas to be a consultant of a law firm.

We wish to highlight that Tun Salleh Abas as a practising lawyer enjoys the same rights and privileges without differentiation whether as a consultant or a partner.In connection therewith, there is no issue of any adverse consequence on one's right to livelihood.

The purpose of the present Rule 60 of the Legal Profession (Practice and Etiquette) Rules, 1978 is to create a separate category of lawyers in recognition of their number of years of experience at the Malaysian Bar. The eligibility for qualification as a consultant is either at least 20 years of active practice at the Malaysian Bar or at least 20 years of experience, comprising active practice of at least 10 years at the Malaysian Bar and service as a Judge or a member of the Judicial and Legal Service. The present Rule 60 is more liberal than its original provision.

Unfortunately, Tun Salleh Abas does NOT qualify under the present Rule 60 because he has been in active practice at the Malaysian Bar for less than 10 years.

Tun Salleh Abas WILL qualify to be a consultant under Rule 60 on 24 March 2009. The Bar Council is proposing to liberalise Rule 60 further.

Rule 62 which empowers the Bar Council with the written approval of the Attorney General, to waive any of the rules within the Legal Profession (Practice and Etiquette) Rules, 1978, cannot be applied to any specific individual lawyer, and if applied to waive any rule it must be applied to all.In respect of the comments associating this issue with that of the 1988 Judicial Crisis, the Bar Council has always spoken against the injustice caused by the 1988 Judicial Crisis.

The Report of the Panel of Eminent Persons to Review the 1988 Judicial Crisis in Malaysia and its promotion of the establishment of the Judicial Appointments Commission are a reflection of its continuous efforts to right the wrong of that era.

The current Bar Council's decision is a correct one. I am of the view that Rule 62 only allows the AG to waive the entire Rule 60 and not to waive it just to meet a particular application, in this case, Tun Salleh Abas'. Further, there is no cogent reason to have the entire rule waived.

It must be emphasised that just because the application is from Tun Salleh Abas, he should not be treated differently.

But then whether he should be treated similarly as Datuk KC Vohrah or any other case prior to this, my own view is that the previous Council had erred in its interpretation of Rule 60. Also, it is a golden rule that just because the previous Council had erred, Datuk KC Vohrah should not be punished for our error of judgment.

Further, just because we had erred previously does not also mean that we must continue with the wrong precedent.

In fact, I believe we have turned down many other applications from other eminent retired judges. This in fact begs the question whether we should now even re-look at the practice of allowing retired judges to practise or there should even be a cooling off period before they are allowed to do so.

All said, the Council acted without fear and favour when rejecting Tun Salleh's application.

From Khoo Gaik Cheng

If the Bar Council has a very good reason not to waive compliance of Rule 60 for Tun Salleh, we would like to hear the Bar Council's side of the story.

Otherwise, how does it explain the admission of our former Court of Appeal judge Datuk K.C. Vohrah as consultant in a KL firm despite him not having met with the aforesaid Rule 60 requirement?

From Mohamed Zaini Haji Mazlan

After all that is done to this man, and all that we try to do for him, this revelation, if correct, is highly disturbing.

I do hope that the Council members could proffer us an explanation, or perhaps, their justification.

From Shanmuga Kanesalingam

At the outset, I think it should be pointed out that the Bar Council is not prohibiting Tun Salleh Abas practising as a lawyer.

As I understand it, he is otherwise qualified for a practising certificate and can be a partner, a legal assistant or a sole proprietor of a law firm. He is merely not allowed to call himself a "consultant" because he does NOT fit the criterion fixed by law.

The point is whether the Bar Council can and should waive the application of that rule to him. I can see merit in Roger's point that the Bar Council should act consistently, and that if they are going to waive a rule it should apply across the Board.

I also agree that a wrong precedent is NO precedent.

But I am not so sure that Rule 62 constrains the Bar Council's hands that much. As I understand it, normally a waiver is something done for good reason for exceptional cases. Could not rule 62 be construed as such, permitting the exercise of discretion in giving exemptions on a case by case basis.

The Chambers Dictionary definition of "waive" suggests to me that a waiver can be specific to a particular case, if need be:

waive verb (waived, waiving)1 law to refrain from insisting upon something; to voluntarily give up (a claim or right, etc).

2 to refrain from enforcing (a rule or penalty, etc). waiver noun 1 the act, or an act, of waiving.

2 a written statement formally confirming this.ETYMOLOGY: 13c: from French weyver to abandon.

Anyway, I look forward to reading the Bar Council's official response.

From Robert Lazar

It will be interesting to know the justification of the Bar Council then as to why KC Vohrah was given a waiver. If there is none then it should be revoked. I don't agree that that will amount to him being punished. It is the firm that that will be deprived. A consultant is nothing more than nomenclature. At the end of the day it is the individual rather than the label. We will not think the lesser of KC Vohrah if he was not to be described as a consultant.

On a different note I was rather peeved to note the following comment in Rocky Bru's article. "A close friend of the Tun told me that the former Lord President felt cheated, betrayed even. The Bar had no qualms about using the Lord President's name and person to champion its cause, but was not willing to help him in a matter that it has discretion to."

In the first place the "its cause" which must mean the pursuit of justice for all does not belong exclusively to the Bar. Secondly it was not Tun Salleh's personality that drove the Bar in 1988. If Rocky really wants to know, the Tun never really endeared himself as a friend of the Bar pre-1988 and neither did many of his actions and judgements. But it was the seat of justice and the institution that was attacked and it was that that the Bar rose to defend. We recognise that Tun Salleh personally did suffer but to say that the Bar made use of him is a gross insult to the Bar and a gross distortion of history. I am confident in saying that want motivates the Bar is the cause not the person.

From Stephen Chang Beng Cheng

It has been conceded that the waiver for our learned friend Datuk K.C. Vohrah, whose record in service I hold dear, was the result of a statutory misinterpretation.

If that is right, then it stands on its own facts and can no longer be cited, let alone applied, to the instant case.

What must come shining through is that the Malaysian Bar's position on the judicial crisis of Aug 8, 1988 - the day when Tun Salleh Abas was disgracefully removed as President of the Supreme Court - transcends the personalities involved.

In other words, whoever were the heads of the contending Executive and Judiciary were irrelevant. What was manifestly material was that the episode robbed this country of its judicial independence. We were robbed of our collective innocence.

With respect, can I question why the particular firm is so interested in making the Tun a consultant when he is already 80 years old? It just does not compute with what the Tun has been quoted as saying in the April 17 dinner for the traumatised Judges.

The Tun, whose total number of years on the Bench and Bar is less than 20, had told the diners that he was more interested in farming and talking to the trees.

My aforesaid comments do not militate against my consistent empathy for Tun Salleh Abas and all the traumatised Judges.

I recall with pride that I did support the "salute the six" campaign at that time, although I was not in the legal profession then.

Indeed, I had very much earlier written to the Tun on the matter. I believe the firm has that letter on file.